Terrance Adams v. The State of Texas--Appeal from 147th District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00159-CR
Terrance Adams, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 0924767, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
In April 1995, appellant was convicted by the district court following his plea of guilty to an indictment accusing him of possessing, in May 1992, twenty-eight grams or more but less than two hundred grams of cocaine with intent to deliver. See Controlled Substances Act, 71st Leg., R.S., ch. 678, sec. 1, 481.112, 1989 Tex. Gen. Laws 2230, 2935 (Tex. Health & Safety Code Ann. 481.112, since amended). The court assessed punishment at imprisonment for eight years and a $750 fine, suspended imposition of sentence, and placed appellant on community supervision. In January 1997, the court revoked supervision on the State's motion, reformed the punishment to imprisonment for six years, and imposed sentence. In three related points of error, appellant contends his guilty plea was involuntary because he was not properly admonished as to the range of punishment. Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) (West 1989).

The State contends appellant's notice of appeal was not timely filed. In the absence of a motion for new trial, appellant had thirty days from the date sentence was imposed in open court to perfect his appeal. See former Tex. R. App. P. 41(b)(1), then in effect. The court revoked supervision and imposed sentence on January 28, 1997. Appellant filed his notice of appeal the same day. The State argues, however, that the time for appellant to file his notice of appeal began to run on April 13, 1995, the date sentence was suspended following his conviction. Apparently, the State bases this argument on the fact that appellant's points of error do not complain of error at the revocation hearing, but instead relate to the voluntariness of his 1995 guilty plea.

Whether appellant should be permitted to collaterally attack his original judgment of conviction on appeal from the order revoking community supervision is a different question from whether appellant properly perfected an appeal from the revocation order. Appellant timely appealed the revocation order, and that appeal is properly before this Court. The State's contention that the appeal should be dismissed as untimely is without merit.

As a general rule, an appeal from an order revoking community supervision is limited to the propriety of the revocation order and does not include a review of the underlying conviction. Whetstone v. State, 786 S.W.2d 361, 363 (Tex. Crim. App. 1990); Hoskins v. State, 425 S.W.2d 825, 827 (Tex. Crim. App. 1967). The underlying conviction may be collaterally attacked on appeal from a revocation order only if fundamental error was committed at the original trial. Dinnery v. State, 592 S.W.2d 343, 350 (Tex. Crim. App. 1980) (opinion on rehearing). Stated another way, any complaint regarding the judgment of conviction that could be raised in a post-conviction habeas corpus proceeding may be raised on appeal from an order revoking community supervision. Ramirez v. State, 486 S.W.2d 373, 374 (Tex. Crim. App. 1972); Smola v. State, 736 S.W.2d 265, 266 (Tex. App.--Austin 1987, no pet.).

Whether a judgment of conviction may be collaterally attacked for noncompliance with article 26.13 has been the subject of numerous opinions, not all of which are easily reconciled. See and compare Heiskell v. State, 522 S.W.2d 477, 478 (Tex. Crim. App. 1975) (noncompliance with article 26.13 may not be raised on appeal from probation revocation), with Robinson v. State, 739 S.W.2d 795, 798 (Tex. Crim. App. 1987) (may collaterally attack judgment of conviction if trial court failed to substantially comply with article 26.13), with Ex parte Smith, 678 S.W.2d 78, 79 (Tex. Crim. App. 1984) (habeas corpus relief granted where trial court gave erroneous admonishment and defendant showed harm). Recently, the Court of Criminal Appeals held that a defendant who collaterally attacks a judgment of conviction on the ground that he did not receive an admonishment required by article 26.13 must show that: (1) no admonishment of the sort required was given and (2) the lack of admonishment affected his decision to plead guilty. Ex parte Tovar, 901 S.W.2d 484, 486 (Tex. Crim. App. 1995).

The reporter's record from appellant's 1995 trial is not before us. Appellant instead draws our attention to the "defendant's plea of guilty, waiver, stipulation & judicial confession" that appears in the clerk's record. This document states, in relevant part:

 

I acknowledge and understand the following admonitions which were explained to me by my attorney prior to entering an oral plea of guilty or nolo contendere:

 

That I am charged with a felony of the 2 degree which has a punishment range of:

 

. . .

 

b. Second degree -- by confinement in the Institutional Division of the Texas Department Criminal Justice for a period of not less than 2 years or more than 20 years, and in addition to imprisonment may be punished by a fine not to exceed $10,000.00;

 

. . .

 

I understand the admonitions of the Court and I am aware of the consequences of my plea.

 

See art. 26.13(d) (court may admonish defendant in writing). This document was signed by appellant and his attorney on December 14, 1994.

Appellant brings forward three points of error, but combines them in a single argument. (1) He urges that the statement that he was accused of a "2 degree" felony was indecipherable to a lay defendant and was analogous to a complete failure to admonish on the range of punishment. He further argues that the written admonishment form does not state that he understood the court's admonitions and lacks any reliable indication that appellant was in fact admonished as to the range of punishment. The admonishment is subject to a more substantial criticism not mentioned by appellant. The offense alleged in the indictment and for which appellant was convicted was not a second degree felony, but an aggravated felony punishable by imprisonment for a term of five to ninety-nine years or life, and a fine not to exceed $50,000. Health & Safety Code 481.112(c), (d)(1), since amended.

The district court's 1995 judgment recites that appellant was "admonished by the Court of the range of punishment attached to the offense . . . ." The judgment is presumed regular and its recitals are binding in the absence of proof of their falsity. Robinson, 739 S.W.2d at 799. The written admonishment form in the record before us confirms that the district court undertook to admonish appellant regarding the range of punishment, albeit incorrectly, and that appellant understood the admonishment given. Appellant's contention that the court wholly failed to admonish him is without merit.

When the trial court incorrectly admonishes the defendant regarding the range of punishment, the admonishment will be held to be in substantial compliance with article 26.13(a)(1) if the punishment assessed was within the range stated by the court and the defendant fails to affirmatively show harm. See Hughes v. State, 833 S.W.2d 137, 140 (Tex. Crim. App. 1992); art. 26.13(c) (substantial compliance sufficient unless defendant affirmatively shows he was misled or harmed). The district court erroneously informed appellant that he was accused of a second degree felony punishable by imprisonment for two to twenty years and a $10,000 fine. Although appellant was convicted of an aggravated felony carrying a much harsher range of punishment, the punishment assessed by the court, imprisonment for eight years and a $750 fine, was within range stated in the admonishment.

Further, appellant does not allege or show that the court's admonishment affected his decision to plead guilty. The record reflects that this was a negotiated guilty plea. If appellant was willing to accept the State's offer of imprisonment for eight years and a $750 fine after being told that he was accused of a mere second degree felony, he would certainly have been willing to accept it had he been correctly informed that he was accused of an aggravated felony with a punishment range of imprisonment for five years to life and a fine of up to $50,000. On this record, there is no basis for concluding that the erroneous admonishment regarding the range of punishment harmed appellant or rendered his guilty plea involuntary. Compare Ex parte Smith, 678 S.W.2d at 79-80 (post-conviction relief granted where punishment range for offense was two to ten years, trial court erroneously advised defendant that punishment range was two to twenty years, and defendant stated under oath that he would not have accepted plea bargain had he known correct punishment range); Johnston v. State, 670 S.W.2d 394, 398 (Tex. App.--Austin 1984 pet. dism'd) (harm shown where charged offense was third degree felony, court erroneously admonished defendant that punishment range was five years to life, and defendant accepted State's offer of five years).

The points of error are overruled and the order revoking community supervision is affirmed.

 

Jimmy Carroll, Chief Justice

Before Chief Justice Carroll, Justices Jones and Kidd

Affirmed

Filed: January 15, 1998

Do Not Publish

1. The individual points are: (1) the district court failed to properly admonish appellant of the consequences of his guilty plea; (2) the district court failed to substantially comply with article 26.13; and (3) appellant's guilty plea was involuntary because he was not properly admonished as to the range of punishment.

nces of my plea.

See art. 26.13(d) (court may admonish defendant in writing). This document was signed by appellant and his attorney on December 14, 1994.

Appellant brings forward three points of error, but combines them in a single argument. (1) He urges that the statement that he was accused of a "2 degree" felony was indecipherable to a lay defendant and was analogous to a complete failure to admonish on the range of punishment. He further argues that the written admonishment form does not state that he understood the court's admonitions and lacks any reliable indication that appellant was in fact admonished as to the range of punishment. The admonishment is subject to a more substantial criticism not mentioned by appellant. The offense alleged in the indictment and for which appellant was convicted was not a second degree felony, but an aggravated felony punishable by imprisonment for a term of five to ninety-nine years or life, and a fine not to exceed $50,000. Health & Safety Code 481.112(c), (d)(1), since amended.

The district court's 1995 judgment recites that appellant was "admonished by the Court of the range of punishment attached to the offense . . . ." The judgment is presumed regular and its recitals are binding in the absence of proof of their falsity. Robinson, 739 S.W.2d at 799. The written admonishment form in the record before us confirms that the district court undertook to admonish appellant regarding the range of punishment, albeit incorrectly, and that appellant understood the admonishment given. Appellant's contention that the court wholly failed to admonish him is without merit.

When the trial court incorrectly admonishes the defendant regarding the range of punishment, the admonishment will be held to be in substantial compliance with article 26.13(a)(1) if the punishment assessed was within the range stated by the court and the defendant fails to affirmatively show harm. See Hughes v. State, 833 S.W.2d 137, 140 (Tex. Crim. App. 1992); art. 26.13(c) (substantial compliance sufficient unless defendant affirmatively shows he was misled or harmed). The district court erroneously informed appellant that he was accused of a second degree felony punishable by imprisonment for two to twenty years and a $10,000 fine. Although appellant was convicted of an aggravated felony carrying a much harsher range of punishment, the punishment assessed by the court, imprisonment for eight years and a $750 fine, was within range stated in the admonishment.

Further, appellant does not allege or show that the court's admonishment affected his decision to plead guilty. The record reflects that this was a negotiated guilty plea. If appellant was willing to accept the State's offer of imprisonment for eight years and a $750 fine after being told that he was accused of a mere second degree felony, he would certainly have been willing to accept it had he been correctly informed that he was accused of an aggravated felony with a punishment range of i